United States v. Carl McNeil, Jr.

Opinion

USCA4 Appeal: 22-4308 Doc: 32 Filed: 09/18/2023 Pg: 1 of 2

Certiorari granted by Supreme Court, July 2, 2024 Vacated and remanded by Supreme Court, July 2, 2024

UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 22-4308

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

CARL RAY MCNEIL, JR.,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington. Terrence W. Boyle, District Judge. (7:02-cr-00098-BO-1)

Submitted: September 8, 2023 Decided: September 18, 2023

Before NIEMEYER and HARRIS, Circuit Judges, and MOTZ, Senior Circuit Judge.

Affirmed by unpublished per curiam opinion.

ON BRIEF: Raymond C. Tarlton, TARLTON LAW PLLC, Raleigh, North Carolina, for Appellant. Michael F. Easley, Jr., United States Attorney, David A. Bragdon, Lucy P. Brown, Assistant United States Attorneys, Kenneth A. Polite, Jr., Assistant Attorney General, Lisa H. Miller, Deputy Assistant Attorney General, Thomas E. Booth, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.

Unpublished opinions are not binding precedent in this circuit. USCA4 Appeal: 22-4308 Doc: 32 Filed: 09/18/2023 Pg: 2 of 2

PER CURIAM:

Carl Ray McNeil, Jr., pled guilty to being a felon in possession of a firearm, in

violation of 18 U.S.C. § 922(g), and discharging a firearm in furtherance of a crime of

violence, in violation of 18 U.S.C. § 924(c). McNeil appeals the 365-month sentence

imposed by the district court, arguing that the court’s factfinding in sentencing him as an

armed career criminal violated the Fifth and Sixth Amendments. We affirm.

We review de novo the district court’s legal determinations regarding the

applicability of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). United

States v. Thompson, 421 F.3d 278, 280-81 (4th Cir. 2005). Under the ACCA, a defendant

is subject to a mandatory minimum 15-year term of imprisonment if he “has three previous

convictions . . . for a violent felony or a serious drug offense, or both, committed on

occasions different from one another.” 18 U.S.C. § 924(e)(1). We recently rejected

McNeil’s argument that the Fifth and Sixth Amendments require a jury to find that the

three ACCA predicates were committed on different occasions, primarily relying on the

Supreme Court’s decision in Almendarez-Torres v. United States, 523 U.S. 224 (1998).

See United States v. Brown, 67 F.4th 200, 201, 205-15 (4th Cir. 2023). While McNeil

argues that Almendarez-Torrez should be overruled, we “remain bound by Almendarez-

Torres.” Id. at 215.

Accordingly, we affirm the district court’s judgment. We dispense with oral

argument because the facts and legal contentions are adequately presented in the materials

before this court and argument would not aid the decisional process.

AFFIRMED